Michigan State University College of Law
INDIGENOUS LAW & POLICY CENTER
OCCASIONAL PAPER SERIES
Criminal Jurisdiction in Indian
Country: The Solution of Cross
Deputization
Hannah Bobee, 3L
Allison Boisvenu, 3L Anderson Duff, 2L
Kathryn E. Fort, Staff Attorney, Indigenous Law and Policy Center Wenona T. Singel, Assistant Professor
Indigenous Law & Policy Center Working Paper 2008-01
July, 2008
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Introduction
Jurisdiction in Indian Country is a complicated field, made more so by federal
laws, policies and court decisions. Police officers in the field are asked to navigate a
formidable body of law to determine what authority they may or may not have in a wide
variety of situations. Officers, who must treat every routine traffic stop as a potentially
life threatening situation, must consider the location of an alleged crime, their present
location, the political identity of the alleged perpetrator, the political identity of the
alleged victim and the nature of the alleged crime before determining what action, if any,
they are authorized to take.
Many agencies have attempted to ameliorate the problem of providing effective
law enforcement in Indian country by entering into cooperative agreements with
surrounding jurisdictions. These agreements expand the authority of officers who would
ordinarily not be able to enforce certain laws against certain individuals. Cooperative
arrangements including Deputization, Cross-Deputization or Mutual Aid agreements
have proved instrumental in streamlining the exercise of law enforcement in Indian
Country; allowing officers to more effectively perform their duties of protecting the
public from crime.
This paper will analyze cross deputization agreements generally, specifically
focusing on the issues of cross deputization in Michigan. Part I summarizes Federal
Indian law and state criminal jurisdiction in Indian Country generally; Part II examines
the structure of law enforcement agencies in Indian Country; Part III analyzes the use of
cross-deputization generally including barriers to negotiation; Part IV discusses
cooperative agreements in Michigan including the legal authority to enter into these
agreements and barriers to do so; and Part V concludes by reiterating the importance of
streamlined law enforcement in Indian Country and emphasizing how the absence of an
agreement between Michigan Tribes and the State Police hampers that objective; and
suggests possible solutions tribes can pursue.
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I. Examining Current Criminal Jurisdiction in Indian Country: Consideration of Issues
A. Definition of Indian Country
All questions relating to criminal jurisdiction and Indians must first begin with
consideration of whether the alledged crime occurred in Indian Country. Where the site
of the crime is Indian Country, federal law, through a combination of statutes and case
law, provides a set of rules that recognize tribal criminal jurisdiction. In some cases,
federal law also recognizes that states of exclusive criminal jurisdiction over certain
crimes in Indian Country. When the site of a crime is not Indian Country, ordinary rules
regarding state and federal criminal jurisdiction apply. Therefore, an officer must
initially determine whether he is operating in Indian Country. The term “Indian Country
is defined in 18 U.S.C. § 1151 as
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.1
While this appears straight forward, the allotment2 of Indian lands and the
subsequent settlement of large portions of reservations lands by non-Indiands
created a confusing pattern of checkerboarded land ownership in Indian Country.3
1 18 U.S.C. § 1151 (2006). 2 24 Stat. 388 (1887); William C. Canby, Jr., American Indian Law in a Nutshell 21 (2004)(the General Allotment Act has been characterized as “… the most important and the most disastrous piece of Indian legislation in United States history…”). 3 See generally, Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 508-13 (1976) (discussing the General Allotment Act stating “These programs altered the traditional communal ownership patterns for Indian lands by allotting and patenting specified [parcels] of land both within and without Indian reservations to individual Indians either in trust or in fee. For a time, these programs created problems of “checkerboard” jurisdiction within particular reservations, as provisions in these acts vested the states with jurisdiction over allotted lands. Moreover, since the Indian Reorganization Act of 1934 had indefinitely extended the trust period of lands still held under these allotment programs, may parcels of land might have been left effectively in a checkerboard jurisdiction limbo.”).
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The fact that reservation lands have been opened up for settlement by non-
Indians does not mean the land is no longer Indian Country. However, Congress
has the power to rescind the reservation status of the lands. Some courts have held
that Congress demonstrated such intent when it opened large portions of some
reservations to heavy settlement by non-Indians. Perhaps the clearest articulation
of how courts consider questions of diminishment is found in Solem v. Bartlett.4
In Solem, the Court decided that language in a statute providing for the
sale of surplus lands following allotment didn’t necessarily evidence intent to
diminish. The Court declined to hold that language in the statute referring to the
lands being sold as “the public domain” and referring to the unsold lands as “the
reservation thus diminished” demonstrated intent to diminish the reservation.5 As
evidence of diminishment, the Court focused on the way interested governments
had treated the land, the present demographic make-up of the land, and the way in
which the land transaction was arranged at the time.6
Recently, the Court articulated a two part test for determining whether
land might qualify as Indian Country under the dependent Indian community
prong of the statutory definition. In Alaska v. Native Villages of Venetie Tribal
Government,7 the Court held that land qualified as a dependent Indian community
if it had been set aside by the federal government for the use of Indians and that
the community involved must be, to a certain degree, dependent on the federal
government.8 The Court referred to these requisites as “federal set aside” and
“federal superintendence” respectively.9
4 465 U.S. 463 (1984). But see, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) (holding that Congress evidenced intent to diminish the boundaries of the original Yankton Reservation by interpretation of language of an 1894 surplus lands act, providing that the tribe will “cede, sell, relinquish and convey to the United States all their claim, right, title and interest in and to all the unallotted lands within the limits of the reservation” for a payment of $600,000). 5 465 U.S. 463 at 475. 6 Id. at 471-72. 7 522 U.S. 520 (1998). 8 Id. 9 Id. at 531.
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B. Congressional Acts: Sources of Federal Jurisdiction in Indian Country
1. Indian Country Crimes Act (“ICCA”)
In 1817 when Congress originally passed the Indian Country Crimes Act
(ICCA),10 it was generally assumed that state law was inapplicable to Indian Country.
The ICCA purported to provide federal punishment for all crimes committed by non-
Indians in Indian Country and some crimes committed by Indians against non-Indians.
Because of recent developments in Indian law, the ICCA presently functions to allow the
federal prosecution of crimes by non-Indians against Indians and non-major crimes by
committed by Indians against non-Indians. While Congress probably intended for the
ICCA to provide for application of federal jurisdiction to all crimes committed by non-
Indians in Indian Country,11 two decisions of the Supreme Court have restricted its scope
as applied to non-Indians. For federal law to apply via the ICCA, the alleged victim of a
crime committed by a non-Indian must be an Indian, and the victim’s identity must be an
element proved in court.12
The ICCA also does not apply to crimes committed by Indians against Indians,
crimes committed by Indians that have been punished by the tribe, crimes over which a
treaty gives exclusive jurisdiction to the tribe, and victimless crimes committed by
Indians. As discussed below, another federal law subjects Indians to federal jurisdiction
for specified crimes, the Major Crimes Act.
2. Assimilative Crimes Act
The Assimilative Crimes Act13 fills in gaps in criminal law that would otherwise
exist in exclusively federal areas such as federal forts and arsenals. The provision
effectively borrows most of state criminal law and applies it through the federal law to
areas under federal jurisdiction, such as special maritime areas under the jurisdiction of
the United States. The Assimilative Crimes Act is important to federal Indian law
10 18 U.S.C. § 1152 (1817)(the ICCA is also referred to as the General Crimes Act (GCA) and the Federal Enclaves Act (FEA)). 11 Canby supra note 2, at 159. 12 See, Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1881). 13 18 U.S.C. § 13 (1825).
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because it is one of the general laws of the United States that reaches into Indian Country
via the Indian Country Crimes Act.
3. Major Crimes Act
Congress passed the Major Crimes Act14 in 1885 as a direct reaction to the
Supreme Court’s decision in Ex parte Crow Dog,15 where the Court held that federal
courts had no jurisdiction over a tribal member who killed another tribal member in
Indian Country. The statute provides for federal jurisdiction over an Indian who commits
one of several enumerated crimes including: murder, manslaughter, kidnapping,
maiming, a felony under chapter 109A, incest, assault with a dangerous weapon, assault
resulting in serious bodily injury, an assault against an individual who has not attained
the age of 16 years, arson, burglary, robbery, and a felony under §661 of title 18.16
According to 18 U.S.C. §3242, a supplemental jurisdictional statute, Indians
prosecuted under the Major Crimes Act must be tried in the “same courts and in the same
manner as are all other persons committing such offenses within the exclusive
jurisdiction of the United States.”17 One problem presented by this statute is whether an
Indian can plea-bargain by pleading guilty to a lesser included offense when being tried
under the Major Crimes Act. A plain reading of §3242 suggests that this should be
allowed, but the court would not have jurisdiction over the lesser included offenses if its
jurisdiction was only conferred by the Major Crimes Act.
The Supreme Court has held that a jury should be instructed that it may convict an
Indian of a lesser included offense when tried under the Major Crimes Act.18 Lower
courts have disagreed as to the plea-bargaining issue and the Supreme Court has not yet
resolved it.19
14 18 U.S.C. § 1153 (1885). 15 109 U.S. 556 (1883). 16 18 U.S.C. § 1153 (1885). 17 18 U.S.C.A. § 3242 (1885). 18 Keeble v. United States, 412 U.S. 205 (1973). 19 See, United States v. John, 587 F.2d 683 (5th Cir. 1979); Felicia v. United States, 495 F.2d 353 (8th Cir. 1974).
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4. Federal Crimes of Nationwide Applicability
Federal criminal statutes of national applicability apply in Indian Country. Some
examples include federal narcotics laws, statutes punishing theft from the United States
mail and treason.20 Since these federal crimes are applicable to Indian Country by their
own terms, they apply to Indian against Indian crimes occurring in Indian Country, unlike
crimes made punishable in federal courts by the ICCA. The Second Circuit suggested in
United States v. Markiewicz21 that crimes of nationwide applicability apply to crimes
committed by Indians against Indians only if the crimes are “peculiarly Federal” in nature
and when prosecution would serve an important federal interest.22 However, no other
circuit has imposed this requirement.23
5. Public Law 280
In 1953, Congress attempted to change the division of criminal jurisdiction in
Indian Country by passing what is commonly referred to as Public Law, or P.L., 280.24
Public Law 280 initially granted five states civil and criminal jurisdiction in Indian
Country and gave the remaining 45 states the option to adopt it.25 Both states and tribes
resented this Congressional action. States resented being given the responsibility of
enforcing criminal law in Indian Country with no commensurate funding and tribes
resented the move as an encroachment on their sovereignty. In 1968, Congress passed the
Indian Civil Rights Act26 which allowed states to retrocede jurisdiction to the federal
government and prevented any new states from adopting Public Law 280 without tribal
consent.27
Public Law 280 mandated that, where its application was mandatory, the ICCA
and Major Crimes Act no longer applied. If however, the state had merely opted in to
20 See, Canby, supra note 2, at 153-155 (discussing Federal Crimes of National Applicability which are “effective throughout the nation, and they apply in Indian country to all persons, whether or not Indian.”). 21 978 F.2d 786 (2d Cir. 1992). 22Id. at 800. 23 Canby, supra note 2, at 155. 24 67 Stat. 588 (1953), as amended, 18 U.S.C.A. §§ 1161-62, 25 U.S.C.A. §§ 1321-22, 18 U.S.C.A. § 1360 (1953). 25 Canby, supra note 2, at 27 (P.L. 280 “extended state civil and criminal jurisdiction to Indian country in five specified states: California, Nebraska, Minnesota (except the Red Lake reservation), Oregon (except Warm Springs reservation), and Wisconsin. Alaska was added in 1958.”). 26 82 Stat. 77, 25 U.S.C.A. § 1301 et seq. (1968). 27 Canby, supra note 2, at 30.
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Public Law 280, the ICCA and Major Crimes Act were not repealed. Although Public
Law 280 clearly substitutes state jurisdiction for federal jurisdiction, it is unclear how it
affects tribal criminal jurisdiction. Michigan was not one of the original Public Law 280
states nor did it later opt into the law.28 For that reason this paper will not delve into the
jurisdictional difficulties presented by P.L. 280 and the tribes subject to it.
C. Metes and Bounds of Tribal and State Criminal Jurisdiction
1. Tribal Criminal Jurisdiction
Tribes have exclusive jurisdiction to punish non-major crimes committed by
Indians against other Indians in Indian Country.29 In addition, tribes retain inherent
authority to exercise jurisdiction over non-member Indians.30 Tribes also have criminal
jurisdiction over non-major crimes committed by Indians against non-Indians in Indian
Country, but this jurisdiction is concurrent with the federal courts pursuant to the Indian
Country Crimes Act. Tribes also possess criminal jurisdiction, concurrent with the federal
government, over major crimes committed by Indians in Indian Country, 31 but this
jurisdiction is severely limited by the Indian Civil Rights Act of 1968. The ICRA limits
sentences imposed by tribal courts to one year imprisonment and limits fines imposed by
tribal courts to $5,000.32
However, the Court has held in Oliphant v. Suquamish Indian Tribe33 that tribes
cannot exercise jurisdiction over non-Indians because such jurisdiction would be
inconsistent with their dependent sovereign status.34 In addition, courts have held that
28 See, Ada Pecos and Jerry Gardner, Public Law 280: Issues and Concerns for Victims of Crime in Indian Coutry, http://www.aidainc.net/Publications/pl280.htm (stating “Congress gave six states … California, Minnesota, Nebraska, Oregon, Wisconsin and … Alaska … extensive criminal and civil jurisdiction over tribal lands within the affected states.”). 29 See, Canby supra note 2, at 135 (stating “Non-major crimes by Indians were within the exclusive jurisdiction of the tribes, and remain so today …”). 30 United States. v. Lara, 539 U.S. 987 (2003). 31 Wetsit v. Stafne, 44 F.3d 823, 825 (9th Cir. 1995)(“A tribal court, which is in compliance with the Indian Civil Rights Act is competent to try a tribal member for a crime also prosecutable under the Major Crimes Act.”). 32 25 U.S.C. § 1302(7). 33 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 34 Id..
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tribes do not have the power to exclude federal officers carrying out their duties if their
duties carry them into Indian Country.35
2. State Jurisdiction
States have exclusive jurisdiction over crimes committed by non-Indians against
non-Indians even if they occurred in Indian Country.36 Victimless crimes committed by
non-Indians in Indian Country are also within the exclusive jurisdiction of the state.37
States generally have no criminal jurisdiction over any crimes committed in
Indian Country by Indians; however, in one instance the Ninth Circuit held that states can
prosecute Indians for violation of state laws regarding liquor sales in Indian Country.38
II. Current Law Enforcement in Indian Country Tribal law enforcement departments are organized in various ways. The structure
of the law enforcement in Indian Country affects what types of agreements are necessary
with other jurisdictions to provide effective law enforcement. This section will discuss
law enforcement agencies in Indian Country and the nature of cross deputization
agreements that aid those agencies in providing effective law enforcement.
A. Law Enforcement Agencies
As previously discussed, criminal jurisdiction in Indian Country depends on many
factors, including where the crime was committed, who committed the crime and the
nature of the crime committed.39 Depending on these factors, any number of law
enforcement agencies may have jurisdiction to arrest offenders or conduct investigations.
For example, the Federal Bureau of Investigation (“FBI”) has authority40 to investigate
35 United States v. White Mountain Apache Tribes, 784 F.2d 917 (9th Cir. 1986). 36 See, Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1881) 37 Solem, 465 U.S.at 465 n. 2. 38 Fort Belknap Indian Community v. Mazurek, 43 F.3d 428 (9th Cir. 1994). 39 Stewart Wakeling, Miriam Jorgensen et al., Policing on American Indian Reservations: A Report to the National Institute of Justice, July 2001, available at http://www.ncjrs.gov/pdffiles1/nij/188095.pdf (last visited 3/27/08). 40FBI’s website on Indian Country Crime at http://www.fbi.gov/hq/cid/indian/safetrails.htm (“The FBI derives its criminal jurisdiction in IC from the IC Crimes Act (18 U.S.C. 1152), The Major Crimes Act (18 U.S.C. 1153) and the Assimilative Crimes Act (18 U.S.C. 13)” Furthermore, “FBI responsibility and jurisdiction for the investigation of federal violations in Indian Country under the Indian Country Crimes
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certain major crimes “committed by Indians against the persons or property of Indians
and non-Indians, all offenses committed by Indians against the person or property of non-
Indians and all offenses committed by non-Indians against the persons or property of
Indians.”41
Similarly, the Indian Law Enforcement Reform Act42 establishes a Branch of
Criminal Investigations within the Division of Law Enforcement (“DLE”) of the Bureau
of Indian Affairs, which “shall be responsible for providing, or for assisting in the
provision of, law enforcement services in Indian Country.”43 The responsibilities of the
DLE includes “the enforcement of federal law and with the consent of the Indian tribe,
tribal law; and in cooperation with appropriate federal and tribal law enforcement
agencies; the investigation and presentations for prosecution of cases involving violations
of 18 U.S.C §1152 and §1153 within Indian Country.” These police departments are
administered by the BIA itself and the staffers in these departments are considered
federal employees.44
In addition to Federal sources of law enforcement, tribes are increasingly forming
their own tribal police departments to enforce tribal laws against Indians on the
reservation. The types of policing models in Indian country vary depending on whether
the Tribe as its own police force or relies on the BIA to provide law enforcement
services. The most common administrative arrangement on reservations45 are
departments organized under the §638 contracting provision of the Indian Self-
Determination & Education Assistance Act (“ISDEA”).46 The Act allows tribes to
organize their own government functions, including law enforcement services, through an
agreement with the BIA. Police departments organized under this act are nicknamed
“638’ed” departments and are administered by tribes under contract with the BIA’s
Act or Major Crimes Act is statutorily derived from Title 28 USC Section 533, pursuant to which the FBI was given investigative responsibility by the Attorney General.”). 41 Memorandum of Understanding between the Unites States Department of Interior, Bureau of Indian Affairs and the United States Department of Justice Federal Bureau of Investigation, available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00676.htm (last visited 3/27/08). 42 25 U.S.C. 2801 et seq. (1990). 43 Memorandum supra note 41. 44 Id. 45 Wakeling et al, supra note 39. 46 25 U.S.C.A. § 450 et seq. (1975).
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Division of Law Enforcement Services.47 Officers of this type of department are
considered tribal employees.
Other less common police departments in Indian Country include those that
“receive funding from the auspices of the self-governance amendments to PL 93-638 and
departments that are funded completely with tribal money.”48 These arrangements allow
for “much more control over governmental functions than is permitted under 638
contracts.”49
The overlapping jurisdictional authority of these various agencies can compound
the task of enforcing criminal jurisdiction on Indian land. For example, a tribal law
enforcement officer has no authority to arrest a non-Indian violating state law on the
reservation. Furthermore, state officers cannot respond to calls involving Indians on tribal
land. Additionally, tribal law enforcement officers, without special authority, cannot
enforce federal laws on reservation land. In all of these instances, an officer attempting to
exercise authority outside of their jurisdiction has no more authority then a normal citizen
doing the same.
III. Cross-deputization Agreements: One Solution for Jurisdictional Confusion
To help remedy these jurisdictional gaps, many agencies have entered into
agreements which prescribe terms for shared authority in and around Indian country.50
Deputization agreements give tribal, federal, state or city law enforcement officials power
47 Wakeling et al, supra note 39. 48 Id. Tribal police departments get their funding from several sources. They can be funded by allotments from tribal resources or by general law enforcement funding allocations like the Community Oriented Policing Services (COPS). They are also funded by tribally specific funding like the 1994 Tribal Self-Government Programs, the Indian Self-Determination and Education Assistance Act of 1975, PL 638 and the Indian Self-Governance Act of 1994. 49 Id. 50 Cross Deputization Agreements exist in many contexts. For example, local law enforcement officials can be deputized with Immigration and Customs Enforcement powers so that they may aid in enforcing immigration laws, see, Deborah Bulkeley, Local Tabs on Illegals urged, Desert Morning News, January 16, 2008, available at http://deseretnews.com/article/1,5143,695244507,00.html (last visited 3/27/08). Another example involves a Michigan Statute authorizing the boards of “public 4-year institutions of higher education to grant higher certain powers and authority to their public safety officers; to require those public safety officers to meet certain standards; to require institutions of higher education to make certain crime reports.” See, Public Safety Officers, Act 120 of 1990, available at http://www.legislature.mi.gov/(S(jy1att55m2hcmyvqyliktmmk))/mileg.aspx?page=getObject&objectName=mcl-Act-120-of-1990 (last visited 3/27/08).
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to enforce laws outside their own jurisdictions regardless of the identity of the
perpetrator, thus simplifying the exercise of criminal jurisdiction.51 These agreements
take many forms depending on the agencies contracting jurisdiction. Though the practice
of entering into cross-deputization agreements in Indian country is not yet commonplace,
there are many such agreements across the country.52 Sometimes, tribal police enter into
agreements with the state, county or city that are geographically close to their land. Other
times, the tribe itself may not have its own police force, in which case the Bureau of
Indian Affairs (“BIA”) is in charge of policing the reservation and may negotiate with
other local law enforcement agencies for aid.
In all of the agreements the intent of the agencies is clear: to work together to
cooperatively enhance public safety efforts in and around Indian country. To that end, the
exact terms of the agreements vary depending on the specific challenges and needs of
each jurisdiction. Repeatedly, the agreements concern the scope of powers of each
agency regarding arrests, issuing of citations, search warrants and interrogations; the
agencies respective powers in emergency or non-emergency situations; immunity;
indemnification; liability insurance and the resolution of disputes arising under the
agreement.
A. Cross Deputization Agreements: Who They Involve, How They Are Achieved
Deputization agreements are negotiated in various circumstances and contain
elements such as: a purpose statement, duties and obligations, jurisdiction, identification
of geographic areas, incarceration and prosecution, exchange of information and
communication, personnel and equipment, indemnification, liability, dispute resolution,
sovereign immunity, binding/non-binding, severability and termination.53
1. Negotiation: Who is involved, what are the barriers?
51 Another type of cooperative agreement called “mutual aid” agreements provide for mutual assistance between law enforcement agencies only giving police the authority to act outside of their jurisdiction in certain circumstances. 52 Eileen Luna-Firebaugh, Tribal Policing: Asserting Sovereignty, Seeking Justice 46 (2007). 53 Paul Stenzel, MOUs and MOAs: A Cooperative Approach to Law Enforcement on the Reservation, 17th Annual Multi-Jurisdictional Conference, November 5 2005 at http://www.paulstenzel.com/multi-j-110305.pdf.
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Cross deputization agreements are often the product of intense and complicated
negotiations between local and tribal authorities. Often there are many barriers that arise
during negotiations. It appears that every element of an agreement mentioned above can
become a barrier, though some elements of the agreement are more contentious than
others. Some of the more adversarial elements are the geographical reach of the
agreements, the jurisdiction of the parties, liability of officers performing under the
agreements and sovereign immunity.54
a. Barriers: Cultural Differences and Years of Neglect
Traditionally, there has been reluctance on the part of tribes to give state or local
police authority in Indian Country.55 Important reasons for this reluctance include both
the years of abuse of power by local non-tribal authorities and years of neglect by non-
tribal police.56 In addition, non-tribal police departments can be insensitive to tribal
cultural or lack of cultural awareness. As one commentator writes, “[h]istorically, tribal
leaders have withheld law enforcement authority from County Deputy Sheriffs due to a
lack of awareness of . . . tribal customs, culture and traditions, a lack of culturally
relevant training courses, and a lack of expertise in the tribal court system.”57
An additional issue is the philosophical difference between the tribal police force
and the state or county police force. States use what has been called the professional
54 See, James May, California Mediates Cross-Deputization, Indian Country Today, December 26, 2001 at http://www.indiancountry.com/content.cfm?id=1009220744 (last visited 3/27/08)(discussing the various concerns surrounding negotiations to cross-deputize Indian police officers in California). 55 Interview with Candy Tierney, general counsel for Bay Mills Indian Community, Brimley, Michigan (February 2008)(For example, the law enforcement agreement between the Bay Mills Indian Community and the Chippewa County Sheriff only provides for the deputization of tribal officers to enforce state law and does not allow for authority of county sheriff officers to enter tribal land to enforce tribal or state law. An interview with Bay Mills general council, Candy Tierney, revealed that this limitation was due to general distrust and historical resentment on the part of tribal members toward non-Indian law enforcement authority.). 56 Luna-Firebaugh, supra note 52, at 24, 46 (one historical example of an abuse of power is the killing of Sitting Bull in 1890 by U.S. police employees of the U.S. government. Sitting Bull was killed after he surrendered for practicing the Ghost Dance religion. This situation “is often cited as evidence to support the contentions that police, and the policing of Indian communities are suspect and not in the best interest of Indian peoples.” Another U.S. policy that has increased mistrust was the removal of Indian Children by government police for the purpose of placing them in boarding schools in the 1880s and 1890s.). 57 Kelly Dedel Johnson, Ph.D, Challenges for Implementing Collaborative Law Enforcement Programs in Tribal Jurisdictions: Lessons Learned from the Uintah County’s Cross-deputization Program, Vol. 2 Issue 3 Tribal Justice Today 14, available at http://www.tribalresourcecenter.org/aboutus/newsletter62003.pdf (last visited 3/27/08).
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model of policing.58 The professional model has a strong focus on investigating and
responding to criminal behavior. It also focuses on preventing crime through the use of
vehicle patrols. There is “centralized organizational hierarchy, insulation between the
police and community and political leaders.”59 Tribal police departments who adopt this
model find that there is a “mismatch between police and the community priorities and
between police methods and tribal norms and values.”60 In a study issued in 2001, tribal
members demonstrated a consensus in desiring more involvement by law enforcement
personnel in community activities, more contact with the community related to education,
and additional contact with the community unrelated to times of crisis.61
One newspaper article illustrates the problems of having non-tribal authorities
responsible for enforcing laws on tribal lands. In an article written for the Denver Post,
Michael Riley documented numerous instances of the FBI failing to enforce laws within
Indian country.62 Riley discussed an assault that occurred on the Fort Peck reservation in
Montana where a man broke his girlfriend’s jaw. The U.S. attorney, who is responsible
for enforcing crimes of this nature, determined that the conduct did not qualify as
"serious bodily injury" and the case was not prosecuted. The tribal prosecutor reported to
Riley that the same man had committed several other crimes since the assault on his
girlfriend. Other individuals on the Blackfeet reservation experienced similar neglect of
law enforcement in their communities; more than year after reporting that she had been
raped by her neighbor, tribal resident Maria Kennerly had not heard any information
regarding the investigation of the case and her assailant was still living next door to her.
Riley also stated that “[a] General Accounting Office report in the 1980s found
that the farther a reservation was from an FBI field office, the higher the percentage of
felony prosecutions that were declined.”63 Additionally he writes,
[b]etween 1997 and 2006, federal prosecutors rejected nearly two-thirds of the reservation cases brought to them by FBI and Bureau of Indian Affairs investigators, more than twice the rejection rate for all federally prosecuted crime. As prosecutors and investigators triage scarce resources or focus on new priorities
58 Wakeling et al, supra note 39. 59 Id. at 42. 60 Id. at 46. 61 Wakeling et al, supra note 39. 62 Michael Riley, Promises, Justice Broken, The Denver Post, November 21, 2007, available at http://www.denverpost.com/ci_7429560 (last visited 2/1/08). 63 Id.
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such as terrorism, hundreds of serious cases of aggravated assault, rape and child sexual abuse occurring on reservations are sent instead through tribal misdemeanor courts. 64
b. Barriers: Liability of Officers
In addition, the liability of officers in lawsuits can be a barrier to reaching an
agreement. In 2001, the liability of police officers in malpractice suits was a major
roadblock in reaching an agreement between tribes in California and the California
Sheriff’s Department.65 Tribes wanted to limit liability to five million dollars, while the
sheriff’s department argued for unlimited liability.66 One reason that the liability issue
receives such attention is that liability of tribal officers could involve a waiver of
sovereign immunity. For example, agreements in Oklahoma and Humboldt County,
California provide for the assumption of tribal officer’s liability by the county. In
exchange, tribes gave a limited waiver of sovereign immunity.67
c. Barriers: Training Differences
An additional barrier is the difference between the training received by state and
tribal law enforcement officers. It is common for tribal officers to not be state certified.68
In Michigan, the Michigan Commission on Law Enforcement Standards (“MCOLES”)
sets the minimum requirements that must be met by each law enforcement applicant prior
to that individual being certified, employed or licensed as a law enforcement officer.69
These standards include requirements related to age, hearing, vision, physical fitness, and
police training.70 Due to the lack of certification many state law enforcement agencies do
not “recognize tribal law enforcement training as adequate and will not cooperate with
64 Id. See also, Michael Riley, Path to Justice Unclear, The Denver Post November 14, 2007, available at http://www.denverpost.com/ci_7454999; Michael Riley, Principles, Politics Collide, The Denver Post November 14, 2007 at http://www.denverpost.com/ci_7446439 (last visited 3/27/08); and Michael Riley, Justice: Inaction’s Fatal Price, The Denver Post November 13, 2007, available at http://www.denverpost.com/ci_7437278 (last visited 3/2708). 65 May, supra note 54. 66 Id. 67 Id. 68 Eileen Luna-Firebaugh, supra note 52, at 40. 69 Information related to the Michigan Commission on Law Enforcement is available at http://www.michigan.gov/mcoles/0,1607,7-229-41624-150169--,00.html. 70 Id.
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them in a collegial manner on-site at an incident.”71 The difference in training is also a
barrier to allowing tribal police officers to act outside of Indian Country.72 Most often a
tribal officer will need to be certified to engage in law enforcement activities outside of
Indian Country.73 In order to obtain a state certificate the officer must obtain training at a
state authorized law enforcement facility. Often this training is difficult or impossible to
obtain due to financial constraints or the personal characteristics of the trainee.74
d. Barriers: Authority to Enter into Cross-Deputization Agreements
Both the local or state government and tribal government require authority to
enter into inter-governmental agreements. “Federal statutes and case law restrict the
lawful authority of tribes and states to make binding agreements between themselves, and
prohibit almost all tribal-state compacts absent approval by the Secretary of Interior.”75
However, some legislation exist that either mandates or strongly encourages tribal-state
agreements.76 Tribes “[u]sually need [a] tribal ordinance or resolution authorizing any
grant of authority to outside law enforcement agents.”77 Additionally there needs to be
“[s]tatutory authority for state and/or local unit of governments to enter agreements or
grant powers to Tribes and tribal officers.”78
For example, the preamble to the 2001 “Law Enforcement” agreement between
the Hannahville Indian Community and the County of Menominee states that the tribe’s
constitution is the basis for its authority to enter into the agreement.79 In regards to the
71 Dedel, supra note 57. 72 Id. 73 Id. 74 Id (Obtaining training “is often a problem in Indian Country, where funding for off-site training, particularly for a long period of time, may be unavailable. Also, individual officers may not be eligible for state certification due to educational standards or other issues, including criminal or personal background or physical competency.”). 75 Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999). 76 See, e.g. Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-1963 (1978); Indian Gaming Regulatory Act, 25 U.S.C.A. §§ 2701-2721 (1988). 77 Stenzel, supra note 53. 78 Id. 79 Law Enforcement Agreement between the Hannahville Indian Community And The County Of Menominee, January 1, 2001, available at http://www.ncai.org/ncai/resource/agreements/mi_law_law_enforcement_agreement_between_hannahville_indian_community_and_menominee_county_january_2001.pdf (last visited 3/27/08)( “The Tribe is authorized to enter agreements with state, local and federal governments Pursuant to Article V Section 1(9)
16
county’s authority, the agreement cites to MCL 28.601 et seq., Commission of Law
Enforcement Standards Act.80 The Little Traverse Bay Band of Odawa Indians and the
County of Charlevoix entered into an Interlocal Agreement for Deputization and Mutual
Law Enforcement Assistance pursuant to the Urban Cooperation Act.81 The agreement
states that the tribe has authority to enter into such agreements under Article VII (1)(b) of
the Tribal Constitution, which states that the “Legislative leader shall . . . [m]ake
recommendations to the Tribal Council on the matter of laws, statutes, programs, or
policies that would be of interest or benefit to the Little Traverse Bay Bands of Odawa
Indians.”82 The County’s authority is stated as “State law as well as the Urban
Cooperation Act.”83
2. Negotiating the Barriers: A Case Study 84
The barriers detailed above can be obstacles, but are also open to negotiation. One
example of a tribe and local government overcoming those barriers and entering into a
mutually beneficial agreement is the agreement between the Little Traverse Bay Bands of
Odawa Indians (LTBB) and their neighboring counties of Charlevoix and Emmet.
Before entering into a cross-deputization agreement with the counties of Emmet and
Charlevoix, the LTBB Tribal Council had passed a resolution allowing non-tribal law
enforcement to come onto Indian Country in the event of an emergency. In order to
broaden the jurisdictional capabilities of Tribal Police and close jurisdictional gaps, in the
late 1990’s, Jeff Cobe, Chief of Police of the LTBB of Odawa Indians, approached law
enforcement offices in counties around tribal land to negotiate a cross-deputization
agreement. The idea was to create seamless law enforcement in and around LTBB lands.
of the Tribe's constitution. The County is authorized by Section MCL 28.601 et. seq. to enter into agreements with other governmental units.”). 80 Mich. Comp. Laws Ann. § 28.601 et seq. (2007). 81 Preamble, Interlocal Agreement for Deputization and Mutual Law Enforcement Assistance between the Little Traverse Bay Band of Odawa Indians and the County of Charlevoix. December 2003 (“LTBB is authorized to enter into agreements with federal, state and local governments under Article VII (1)(b) of the Tribal Constitution as well as the Urban Cooperation Act. The county of Charlevoix is authorized to enter into agreements under State law as well as the Urban Cooperation Act.”)(on file with author). 82 Id. 83 Id. 84 Interview with James Branskey, general counsel for Little Traverse Bay Bands of Odawa Indians, Harbor Springs, Michigan (February 2008).
17
The initial contact met with some resistance. However, Chief Cobe had good credibility
with the local sheriff85 which helped facilitate the discussion.86 Initially, the tribe pushed
for an agreement which would give their officers authority to enforce state laws within
their reservation boundaries.87 However, this proposition became a major stumbling
block in the negotiations,88 and the issue was put aside in order to focus on other
concerns. After agreeing to put aside the issue of reservation boundaries, there were a
series of meetings between the Tribal police department, the Tribal attorney, the County
Sheriff and prosecutor. In their final forms, the agreements limit the geographic scope to
LTBB trust lands. Despite this concession, all the parties were pleased with the outcome
of the agreements. Though the terms of the agreement expire December 31 of 2008, it is
anticipated that the agreements will be resigned in their current form due to the overall
consensus of their success.
IV. Cross-Deputization89 in Michigan
There are twelve federally recognized tribes in Michigan.90 Of those tribes,
ten operate their own law enforcement departments.91 Of the ten tribes that maintain
tribal law enforcement departments, nine have agreements with a local jurisdiction or
85 The Emmet county agreement was negotiated first; followed by the Charlevoix county agreement. 86 Branksey Interview, supra note 84 (the level of trust between the Tribal and Local police departments seems to be an important aspect of negotiating these types of agreements. In particular, tribal attorney James Branskey noted that Chief Cobe had a “bridge-building capability” which helped get everyone on the same page in terms of providing public safety). 87 http://www.ltbbodawa-nsn.gov/TribalHistory.html (the LTBB’s “historically delineated reservation area, located in the north-western part of Michigan's Lower Peninsula, encompasses approximately 336 square miles of land within the two counties.”). 88 The reservation land issue actually stalled the negotiations for a couple years before it was put aside. 89 Not all agreements are cross-deputization agreements; some allow only for the deputization of one department’s officers and not the other’s. One example is the Bay Mills agreement with Chippewa County which allows for the deputization of tribal officers to enforce state law, but not vis-versa. 90 These include: The Bay Mills Chippewa Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Hannahville Potawatomi Indian Community, Huron Potawatami Indians, Keweenaw Bay Indian Community, Lac Vieux Desert Band of Lake Superior Chippewa Indians, Little River Band of Odawa Indians, Little Traverse Bay Bands of Odawa Indians, Match-e-be-nash-she-wish Band of Potawatomi Indians, Pokagon Band of Potawatomi Indians, Saginaw Chippewa Indians and Sault Ste. Marie Chippewa Indians. 91 Information from comments made by Bill Gregory at Criminal Jurisdiction in Indian Country Panel sponsored by the Indigenous Law & Policy Center, February 28, 2001.
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local police.92 These agreements take the form of deputization of tribal officers by the
county sheriff,93 as well as cross deputization of tribal and county officers to enforce each
other’s laws under certain limitations.94 However, there is no state-wide agreement
providing for the deputization of tribal police.
A. Authority for Cross Deputization Agreements in Michigan
In Michigan, it appears that statutory authority exists to allow state police to enter
into agreements with tribal police departments. Despite this authority, there is no such
agreement95 and law enforcement cooperation remains on the local level.96
1. Legal Authority for the State: MCL 28.601 and MCL 51.70
MCL 28.609 sets out the minimum standards by which a law enforcement officer
of a Michigan Indian Tribe can exercise peace officer authority in the state. The first
requirement is that the tribal police officer be certified under the act.97 Additionally the
tribal officer has to be one of the following:
(1) deputized by the sheriff of the county in which the trust lands of the Michigan Indian tribe employing the tribal law enforcement officer are located, or by the sheriff of any county that borders the trust lands of that Michigan Indian tribe, pursuant to section 70 of 1846 RS 14, MCL 51.70; (2) appointed as a police officer of the state or a city, township, charter township or village that is authorized by law to appoint individuals as police officers.98
The deputization or appointment of the tribal officer described above has to be in
writing that is incorporated into a self-determination contract, grant agreement or
cooperative agreement between the Secretary of the Interior and the tribal government 92 According to Mr. Gregory, only one tribe, Little River Band of Ottawa Indians, does not have a local law enforcement agreement with surrounding jurisdictions. 93 See, Deputization Agreement between the Grand Traverse Band of Ottawa and Chippewa Indians and the Sheriff of Leelanau County; and Law Enforcement Agreement between the Bay Mills Indian Community and the Chippewa County Sheriff (on file with author). 94 Interlocal Agreement for Deputization and Mutual Law Enforcement Assistance between the Little Traverse Bay Bands of Odawa Indians and the County of Emmet (on file with author). 95 There is not a long term cooperative agreement between the MSP and Tribal police in Michigan. There have, however, been short-term agreements under the Urban Cooperation Act to help police specific events such as the Cherry Festival in Traverse City (interview with John Petoskey). 96 Most deputization agreements are with the county sheriffs. 97 MICH. COMP. LAWS § 28.609(7)(a)(YR). 98 Id. at § 28.609(7)(b)(i-ii).
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employing the officer.99 Section 28.609 is often cited as giving the county authorization
to enter into cooperative agreements with tribal law enforcement.100
MCL 51.70 gives sheriffs the authority to appoint “1 or more deputy sheriffs at
the sheriff’s pleasure.”101 This statute also gives the sheriff authority to deputize “persons
… by an instrument in writing, to do particular acts, who shall be known as special
deputies …”102 These appointments by the sheriff can be revoked at any time.103 This
statute is cited in agreements as authority for the sheriff to appoint special deputies.104
2. Legal Authority for the State: Michigan Attorney General Opinion
In 1973 the Michigan Attorney General wrote an opinion in response to a request
from Col. John R. Plants of the Michigan State Police, addressing whether state police
agencies are authorized to collaborate with tribal police agencies.105 The Attorney
General at the time, Frank J. Kelley, concluded that “[a] duly established Indian
reservation police force is in every respect a fully authorized and legitimate police unit.
State, county and local police forces may freely enter into inter-agency arrangements
with Indian police units and may engage in other kinds of cooperative efforts which may
seem advisable and practicable.”106 The Attorney General’s opinion referenced MCLA
28.6107 and determined that “[u]nder this provision the Department of State Police may
take the initiative in coordinating the efforts of local, county, and state law enforcement
99 Id. at § 28.609(7)(d). 100 See, e.g. Law Enforcement Agreement Between the Hannahville Indian Community and the County of Menominee; Law Enforcement Agreement between the Bay Mills Indian Community and the Chippewa County Sheriff (on file with author). 101 MICH. COMP. LAW ANN. §51.70. 102 Id. 103 Id. 104 See, e.g., Interlocal Agreements for Deputization and Mutual Law Enforcement Assistance between the Little Traverse Bay Bands of Odawa Indians and the County of Emmet and Charlevoix; Deputization Agreement between the Grand Traverse Band of Ottawa and Chippewa Indians and Sheriff of Leelanau County (on file with author). 105 MI Att’y Gen. Op. No. 4803 (October 29, 1973) available at http://www.ag.state.mi.us/opinion/datafiles/1960s/op04087.pdf (last visited 3/27/08). 106 Id. 107 MICH. COMP. LAW ANN. §28.6 (the commission of the state police “shall formulate and put into effect plans and means of cooperating with the local police and peace officers throughout the state for the purpose of the prevention and discovery of crimes and the apprehension of criminals. Local police and peace officers shall cooperate with the commissioner in those plans and means.”).
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unites to cooperate with the new tribal forces.”108 Thus, it appears that as early as 1973
there was authority in Michigan to enable the State police to enter into cooperative
agreements with Tribal police departments.
3. Legal Authority for the State: The Urban Cooperation Act
The Urban Cooperation Act of 1967109 was intended
to provide for interlocal public agency agreements; to provide standards for those agreements and for the filing and status of those agreements; to permit the allocation of certain taxes or money received from tax increment financing plans as revenues; to permit tax sharing; to provide for the imposition of certain surcharges; to provide for additional approval for those agreements; and to prescribe penalties and provide remedies.110
Indian tribes are included under the definition of “public agency.”111 To fall under
the definition the tribe must be recognized by the federal government before the year
2000 and also exert governmental authority over land in the state of Michigan. Indians
tribes were included under the definition of public agency in the 2001 proposed
amendment to the Act.112 One of the reasons cited for amending the Act to include Indian
tribes in the definition of “public agency” was law enforcement concerns surrounding the
Cherry Festival in Traverse City.113 The State House of Representatives analysis of the
amendment discussed events to be held at the Turtle Creek entertainment facility and
difficulties for tribal officers to enforce law against non-Indian attendees of the
festivities.114 The analysis states “the tribe would like to enter into an agreement with the
state police so that tribal officers can be deputized to have arrest powers over non-Native
visitors, but there is no legal authority to do so.”115 Thus, the amendment served to give
legislative authority for “state police [to] enter into agreements with Tribal
108 MI Att’y General opinion supra note 102. 109 MICH. COMP. LAW ANN. § 124.502, 1967, Ex. Sess., Act 7, Eff. Mar. 22, 1968. 110 Id. 111 Id. § 124.502(e). 112 2002 Mich. Legis. Serv. P.A. 439 (S.B. 112). Effective date June 13, 2002. 113 House Legislative Analysis, Senate Bill 112, June 4, 2002 at http://legislature.mi.gov/doc.aspx?2001-SB-0112. 114 Id. 115 Id.
21
authorities.”116 These agreements would allow for the deputization of tribal officers and
state police to enforce each other’s laws against anyone.
In addition to Indian tribes, other types of entities included under the public
agency definition are counties, cities, villages, townships, charter townships, school
districts, single and multipurpose special districts, single or multipurpose public
authorities. This Act gives local governments authority to enter into agreements with
tribes “to exercise any power or authority that each party could exercise separately on its
own,”117 without having to first get permission from the state.
Section 124.505 of the Act outlines the requirements for agreements entered into
pursuant to a contract.118 The Act has 15 clauses that the contract may contain,
including: the purpose for the agreement, the duration of the agreement, and the financial
obligations of the parties. One of the stated purposes of the Act was to provide for a
uniform procedure for filing agreements. Section 124.501(4) states that “[p]rior to its
effectiveness, an interlocal agreement shall be filed with the county clerk of each county
where a party to the agreement is located and with the secretary of state.” Whether this
provision has been complied with has yet to be determined.
After the amendment, LTBB cited the Act as authority to enter into agreements
with Emmet and Charlevoix counties.119
Thus, it appears from analyzing the sources of authority in Michigan that an
agreement between the Michigan State Police and tribal law enforcement is not precluded
by law. Despite this authority, all law enforcement agreements in Michigan are entered
into at the local level. The following section analyses the possible benefits of a state level
solution and concerns that have prevented that from happening thus far.
B. Benefits of Agreements between State Police and Tribes
In evaluating whether an agreement at the state level would be beneficial to
overall law enforcement, it is important to discuss what such an agreement would
116 Id. 117 Center for Local, State, and Urban Policy, University of Michigan, available at http://www.closup.umich.edu/research/projects/reggov/regionalgov-background.php (last visited 3/27/08). 118 “A joint exercise of power pursuant to this act shall be made by contract or contracts in form of an interlocal agreement.” MICH. COMP. LAWS 125.501 Urban Cooperation Agreement § 124.505 (1967). 119 See, e.g., LTBB agreement with Emmet and Charlevoix counties (on file with author)..
22
authorize tribal police to do. In general, State police have statewide authority to conduct
law enforcement activities and criminal investigations. They perform functions outside
the jurisdiction of the county sheriff, such as enforcing traffic laws on state highways and
interstate expressways, overseeing the security of the state capital complex, protecting the
governor, training new officers for local police forces too small to operate an academy,
providing technological and scientific support services, and helping to coordinate multi-
jurisdictional task force activity in serious or complicated cases in those states that grant
full police powers statewide.
One desirable advantage for tribes entering into agreements with the State police
is the non-expiring nature of such agreements. County sheriffs are elected to 4 year terms
only. As a consequence, officers deputized by a county sheriff have to be sworn in again
when a new sheriff takes office. The new sheriff could simply refuse to honor the
previous agreement which would have deleterious effects on providing law effective law
enforcement. Administratively it is easier to have one agreement on a state-level than
multiple agreements with various county sheriffs.
In addition, a state-wide solution would provide back-up authority for tribal
officers to enforce state laws against non-Indians in the tribe’s enforcement area in the
event that the local or county sheriff is uncooperative. For political reasons or general
distrust, a sheriff may decline to deputize a tribal official.120 If a sheriff declines to
deputize tribal officers, they have no authority to enforce state laws against non-Indians.
Thus, a state-wide agreement could ensure that tribal authority is insulated against an
individual sheriff’s distrust or dislike of tribal officials.
Also, a state-wide agreement could aid in the enforcement of hunting and fishing
laws outside the counties where tribes have trust land. As the law stands, sheriffs can
only deputize tribal officers to enforce state law if the tribe has trust land in or bordering
the sheriff’s county. However, matters involving tribal members such as treaty rights
occur in areas broader than the reservation.121 For example, when LTBB officers are
enforcing hunting or fishing regulations off the reservation they sometimes come upon
120 Tierney, Interview supra note 55. 121 Id.
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dangerous situations involving non-Indians and are unable to do anything about it.122
Furthermore, this jurisdictional gap means that the Tribal officers in the field have no
liability protection as law enforcement officers.123 This issue could perhaps be resolved
with a deputization agreement with the state allowing for Tribal Officers to respond to
this and other situations while in various parts of the state.124 However, the National
Resource and Environmental Protection Act would have to be amended before tribal
conservation officers can be deputized to enforce treaty rights throughout the state.125
The 2007 Inland Settlement Consent Decree allows for tribal officers to “stop hunters and
fisherman in the field in order to determine whether they are tribal members” and “to the
extent they are deputized under applicable law, enforce state regulations with respect to
non-Tribal members.”126
Thus, there are various benefits of a state-wide solution for deputization of tribal
officers. Despite these benefits, various concerns have prevented a state-wide solution
and have kept law enforcement agreements at a local level.
C. Concerns of State Officials Regarding a State-Wide Solution to Deputization of Tribal Officers
Law enforcement agencies in Michigan are generally eager to cooperate with one
another to provide optimal law enforcement to their citizens.127 It appears that the major
concerns rest with the lawyers who perceive the possible liability issues these agreements
can create.128 It is the job of the Attorney General’s office to protect the State sheriffs
regarding these issues. Thus, there are several issues of concern for the Attorney 122 In this situation, a Tribal police officer has no more authority than an ordinary citizen and must dispatch a State police officer and wait for them to arrive. 123 Branskey, Interview, supra note 84. 124 The Department of Natural Resources has maintained that it would require state legislation to allow it to deputize tribal conservation officers. 125 Interview with John Wernet, Deputy Legal Counsel to Governor Granholm, Lansing, Michigan (February 2008). 126 2007 Inland Settlement Consent Decree, XXIV § 24.6, available at http://turtletalk.files.wordpress.com/2007/11/consent-decree.pdf (last visited 3/27/08). 127 Interviews with Candy Tierney, supra note 55, and John Wernet, supra note 127, revealed a general consensus that law enforcement agencies generally want to cooperate with each other to the fullest extent possible. For example, the Keweenaw Bay Indian Community has informal agreements with local law enforcement to provide for assistance. Furthermore, it appears that the State Police lobbied to get the Urban Cooperation Act amended to include Indian Tribes in the definition of “public agency” so as to facilitate intergovernmental agreements. 128 Wernet, Interview, supra note 127.
24
General’s office regarding a state-wide agreement with tribal police. These concerns
mirror the barriers detailed above, which indicates they could be solved through
negotiations between the state and tribe. The concerns include: the constitutionality under
the Michigan Constitution of deputizing tribal officers; the training or qualification
requirements of deputized tribal officers; the liability of the sheriffs regarding conduct of
tribal officers; and the command and control of tribal officers acting as special
deputies.129
One reason given in interviews with the authors as to why a state-wide agreement
has not been achieved is because it would be unconstitutional under the state
constitution.130 In many circumstances, tribal officers are cross-commissioned by the
BIA to enforce federal laws and thus are considered federal officers.131 For this reason, it
could be interpreted unconstitutional have tribal officers deputized as both federal and
state officials.132
Another concern of the A.G.’s office is the training and qualifications required of
tribal officers as opposed to state-certified officers. However, this concern seems to be
ameliorated by amendments to MCL §28.609 in 1994, prescribing the exact training and
requirements necessary for a tribal police officer to receive peace officer status.133
Liability of state police for actions of deputized tribal officers is another concern
of a state-wide agreement. For example, if a state officer assists a tribal officer on a tribal
matter; would they be liable for suit in a tribal court? Likewise, if a tribal officer comes to
the aid of a state officer outside tribal jurisdiction; could they be personally liable if they
are sued? These are important concerns for the attorneys that seek to protect their officers
from personal liability in carrying out their duties.
Lastly, there are concerns that a state-wide agreement would not be conducive to
clarifying issues of command and control which involves who can tell officers what to
129Tierney, interview supra note 55; Wernet, interview supra note 127. 130 MI. Const. of 1850, available at http://www.legislature.mi.gov/documents/historical/miconstitution1850.htm (last visited 3/27/08). 131 For example, LTBB Tribal officers are commissioned by the BIA to enforce federal laws on tribal land. See, LTBB of Odawa Indians Deputization Agreement with Secretary of the Interior, available at http://www.ncai.org/ncai/resource/agreements/Little%20Traverse%20Bay%20Bands%20BIA%20Deputation%20Agreement.pdf (last visited 3/27/08). 132 Tierney, interview supra note 55 (this is not an official opinion of the Attorney General thus it is hard to ascertain which provision of the Michigan Constitution would be violated by such deputizations.). 133 See, supra section III (A)(1) discussing MCL 28.609.
25
do. Law enforcement operates in a military style command and control system. The
efficiency of this system could be compromised by having more than one officer in
charge of instructing a tribal (or state) law enforcement officer on how to carry out their
job.134
Thus, despite the apparent legislative authority for state police to enter into
agreements with tribal departments, these concerns have led the Attorney General to take
the stance that the state police are unable to do so. For now the opinion seems to be that
these agreements are best left to the local level where cooperative relationships are more
equipped to deal with local concerns and resources can be better shared.135 It appears the
issue of a state-wide solution for deputization of tribal officers has not been revisited in 5
to 6 years.
D. Possible Solutions: Looking to Other States for Examples of a Legislative Fix Other states have found that statutory-deputization is a better solution for enabling
Tribal officers to enforce state law than deputization or cross-deputization agreements
alone. For example, the Washington Legislature is considering a bill that would give
tribal police officers that met certain standards the authority to arrest non-Indians on
tribal land.136 House Bill 2476 passed both the House and Senate in February and March,
respectively, and is awaiting the signature of Governor Christine Gregoire.137
The Washington bill has certain requirements in order for tribal police to have
arrest authority over non-Natives. First, “a tribal department will have to be certified by
the Criminal Justice Training Commission in Burien, to show that each officer was
trained to commission’s standard.”138 Then, a tribe will have to submit that certification
along with proof of insurance to the Washington Office of Financial Management.139 If
134 Wernet, interview supra note 127. 135 Id. 136 The Seattle Times, Editorial, Expand Tribal Police Authority, February 11, 2008, available at http://seattletimes.nwsource.com/html/editorialsopinion/2004172750_tribed11.html?syndication=rss (last visited 3/27/08). 137 Josh Farley, Bill to Expand Tribal Police Authority Clears Senate, Kitsap Sun, March 7, 2008, available at http://www.kitsapsun.com/news/2008/mar/07/bill-to-expand-tribal-police-authority-clears/ (last visited 3/27/08). See also, Washington Tribal Police Bill Awaits Signature, Indianz.com, March 18, 2008, available at http://www.indianz.com/News/2008/007688.asp (last visited 3/27/08). 138 Id. 139 Id.
26
the tribe is approved, within a year they would have to seek a memorandum of
understanding with neighboring law enforcement to “set ground rules for how the tribal
and non-tribal agencies would cooperate.”140 If the tribal police and local authorities
could not come to an agreement within a year, a binding arbitration would begin, with the
arbitrator deciding which side has a more reasonable proposal.141 The authority provided
by the act extends only to the exterior boundaries of the reservation or “outside the
exterior boundaries of the reservation” under certain circumstances.142
In addition, the bill would require tribal officers acting under peace officer
authority in arresting non-Indians on tribal land to waive sovereign immunity in the event
of a legal challenge. The legislation also specifies that tribal court authority is not
extended and that Indians cited outside the reservation boundaries could be referred to
state court.143
Thus, the bill addresses concerns such as training, liability insurance and
sovereign immunity. Once Tribes submit evidence of certification and insurance, the
local authorities are required to enter into agreements with the tribes within a year. If the
agreement doesn’t come to fruition, a binding arbitration ensures that some compromise
is reached. Thus, the bill essentially makes it mandatory that local law enforcement
cooperate with tribal police departments. Similar legislation exists in Arizona, Oklahoma,
Kansas144 and New Mexico.145
Putting aside any constitutional issues that may or may not apply in Michigan, it
seems like a legislative solution could be a viable option for providing a state-wide
solution to jurisdictional gaps. Indeed, the legislation in Washington seems to address at 140 Id. 141 Rob Carson, Tribal Police Hopeful for Increased Authority Against Non-Indians, The News Tribune, March 25, 2008, available at http://www.thenewstribune.com/news/local/story/311756.html (last visited 3/27/08). 142 These circumstances include “with consent of the local sheriff; in response to an emergency involving threat to human life or property; in response to a request for assistance pursuant to a mutual law enforcement assistance agreements; when transporting a prisoner; when the officer is executing an arrest or search warrants; or when an officer is in fresh pursuit.” Washington State House of Representatives, Bill Analysis, HB 2476, January 18, 2008, available at http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bill%20Reports/House/2476.HBA%2008.pdf (last visited 3/27/08). 143 Seattle Times Editorial, supra note 136. 144 Rob Carson, Tribal Police Bill Stirs Up Dissent, The News Tribune, January 19, 2008, available at http://www.thenewstribune.com/news/local/story/259063.html (last visited 3/27/08). 145 Manual Valdes, Bill Would Expand Tribal-Police Authority, The Seattle Times, January 31, 2008, available at http://seattletimes.nwsource.com/html/politics/2004155584_tribalpolice31m.html (last visited 3/27/08).
27
least two of the concerns of the state, namely training and liability. Thus, adopting the
same kind of measure in Michigan would appease those concerns as well as create a
presumptive validity of Tribe’s authority to affect law enforcement within reservation
boundaries.
E. Other Options for Tribes
In addition to a possible legislation fix, Michigan tribes have other options if they
decide that an agreement with the state police is an important goal for tribal law
enforcement.
First, tribes can continue to pursue an agreement with state police on a
government to government basis with the presumption that these agreements are
permissible under Michigan law. It appears that the authority does exist in Michigan for
the state police to enter into agreements with Tribes for cooperative law enforcement.146
The Attorney General’s opinion in 1973 lending support to this authority is still good law
and has not been expressly contradicted by a subsequent opinion. Whatever stance the
Attorney General now has on the validity of state-tribal agreements must be informal and
undocumented. Thus from a formal standpoint, there is no contradicting authority to
invalidate the ability of the state police from entering into these types of agreements with
tribes.
In addition, legislation in Michigan lends support to the argument that state police
are permitted to enter into agreements with tribes.147 MCL §28.609 contains requirements
tribal police must meet in order to obtain peace officer status. Furthermore, MCL §51.70
permits the permits the sheriff to appoint special deputies. The Urban Cooperation Act
strengthens the legality of a state-tribal agreement by including Tribes in the entities
permitted to enter into inter-governmental agreements. Thus, there is ample authority for
Tribes to seek an agreement.
However, given the unstated reluctance of the Attorney General’s office to
support such agreements, tribes may have to pursue other options. First, tribes may
146 See, supra section IV. (A) discussing authority in Michigan. 147 Id.
28
contact the Michigan State Police First Lieutenant Grey Zarotney,148 and express a desire
to revisit the issue. If this contact does not result in desirable action, tribes can also
contact John Wernet of the Governor’s office. Additionally, tribes can address the issue
to state officials at the annual summit of Michigan and Tribal governments.149
Thus, if tribal governments decide that law enforcement would be better served
by a state-tribal agreement as well as local agreements, there are several options that can
be weighed and pursued to that end.
IV. Conclusion
Tribal-State relations in Michigan have vastly improved over the last 15 years. As
more trust and understanding is fostered between tribal, state and local governments,
cooperative agreements are becoming more commonplace. Indeed, the use of cooperative
law enforcement agreements at the local level is widespread in Michigan, greatly
simplifying the duties of officers.
Despite the benefit of these agreements, situations still exist that might hamper
law enforcement efforts in Indian communities. The local sheriff is under no obligation to
deputize tribal officers. Thus, the deputization is at the sheriff’s pleasure and a change of
office, general dislike or distrust may impair the ability of tribal law enforcement officers
to receive special deputy status. For these and other reasons, a state wide solution or state
police agreement might be a desirable option to reinforce tribal law enforcement
authority to enforce state laws against non-Indians on reservation land.
The advantages of a state wide solution for tribal law enforcement is up to each
tribe as sovereigns weighing what is best for their communities. Despite the apparent
authority in Michigan of state-tribal agreements as evidenced by the Attorney General
opinion and statutes, the issue of a state police agreement or a state legislative fix has not
been revisited for many years. This could be due to the perception that the solutions at the
local level are working for tribal communities. However, tribes have options should they
decide to revisit the issue, including: pursuing a legislative fix; opening negotiations with
148 Mr. Zarotney is the Michigan State Police contact for tribal issues. 149 The summit, an annual government to government meeting between the Governor and tribal leaders, typically falls annually in May.
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the state police; and addressing the issue with the governor’s office or at the annual
summit.
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